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Friday, November 26, 2010

THE GREEN PATHWAY

(Summary: This talk explains the principles established by the courts for environmental protection and controlling pollution as well as major laws relating to it. It also explains what we can do to protect the environment and reduce pollution.

It was delivered by Justice Yatindra Singh, Judge Allahabad High Court, Allahabad at the national seminar on 'Impact of Environmental Changes on Human Life' organised by SS Khanna Girls' Degree College Allahabad on 21.11.2010A pdf format of the text can be downloaded by clicking here.)

If you paraphrase the topic of the seminar to 'Impact of Human Life on Environmental Changes' and consider the factors then it will point to—Population Explosion. If we cannot control it, then we cannot avoid environmental degradation. After all, there is a limit to what mother earth can bear.

The best policy for population control is, women empowerment. It cannot be achieved without women education. And I am happy to note that this college is doing it with distinction. This is the only constituent degree college of the University of Allahabad, exclusively for girls, providing education in the four faculties namely, Science, Commerce, Education, and Arts—Without imposing but inspiring them to discover their own potentials. I am privileged to be here in this seminar at SS Khanna Girls' Degree college

The last century was the century of physicists but this is no longer true. This century is the century of biologist, a century of environmentalists. Environmental issues will play a crucial role in this century. If we want to have a brighter tomorrow then only way is the Green pathway. This is the reason why seminar's topic is relevant.

The impetus to the green pathway was given by the law courts through Public Interest Litigation (PIL) (see Endnote-1). Let’s briefly consider the cases and the principles established therein.

THE CASES AND THE PRINCIPLES

The Vellore Case

Sustainable development as a concept came to be known in the Stockholm Declaration of 1972 (see Endnote-2). It was given definite shape in 1987 by the World Commission on Environment and Development (see Endnote-3) in its report, 'Our Common Future'. This commission was chaired by the then Prime Minister of Norway Ms. GH Brundtland (see Endnote-4) and this report is known as 'Brundtland Report'. Sustainable Development means that the development should meet the needs of the present without compromising the ability of the future to meet their own needs. Its salient features are

The Vellore case was filed against the pollution caused by discharge of untreated effluents by the tanneries and other industries in Tamil Nadu. The Court accepted the precautionary principle as legally enforceable maxim and elaborated it as:

Environmental measures must anticipate, prevent, and attack the cause of environmental degradation.

Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

The onus of proof is on the actor or the developer/ industrialist to show that his action is environmentally benign.

The EnviroAction Case

Indian Council for Enviro-Legal Action Vs. Union of India AIR 1996 SC 1447 (the EnviroAction case). Chemical industries in village Bicheri district Udaipur, Rajasthan were releasing toxic effluents damaging the earth and water. They were closed but no action was taken to undo the damage done by them. This case was filed for remedial action.

In the EnviroAction case, the Supreme Court accepted the principle of 'polluter pays'. It means that the financial cost of preventing or remedying damage lies with the undertaking causing the pollution. It cannot be saddled with the government, as it would shift to the taxpayers.

The Kamalnath case

M/s MC Mehta Vs. Kamalnath 1997 (1) SCC 388. M/s Span motels was given a lease on 29.9.1972 of about 40 bigha 3 biswa of land for a period of 99 years from 1.10.1972 to 1.10.2071. By 1981, almost all shares of this motel were taken over by the family of Kamalnath. On 29.11.1981 a fresh lease for the same period was executed. By the time, the Motel also illegally occupied forest land.

Subsequently, when Kamal Nath was the Minister in charge of Ministry of Environment and Forest, the Central Government of India, Ministry of Environment and Forests granted approval on 24.11.1993 for grant of further lease of 27 bighas and 12 biswa of land: the same land which was illegally occupied by the motel. The lease of this area was executed by the Himanchal Pradesh Government on 11.4.1994. A news item was published in the Indian Express on 25.2.1996 that:

The motel has made constructions over forest land after encroaching it;

This illegal activity is being regularised;

The course of river Beas is being changed.

On the aforesaid report, the Supreme Court took suo motu action in the case. The lease granted on 11.4.1994 was held illegal and was cancelled. The Court applied the public trust doctrine which means that the State is a trustee of all natural resources for the benefit of the public and is under legal duty to protect it.

The Godavarman Case

TN Godavarman Thirumulkad Vs. Union of India 1997(2) SCC 267. The Supreme Court held that Forest Conservation Act 1980 was enacted to check deforestation. It applies to all forests irrespective of nature of their ownership or classification. It includes forests designated as reserved, private or otherwise and prior approval of the central Government is required for any non-forest activity within the area of any forest. Deforestation causes ecological imbalance: forests, trees and bio-diversity are to be protected.

The Oleum Gas Leakage case

MC Mehta Vs. Union of India: AIR 1987 SC 1086. Oleum gas leaked from Sri Ram food and fertilizers factory in December 1985 and a case was filed for determining,

The liability of the enterprises engaged in sale and manufacture of hazardous products; and

The conditions in which they should be permitted to operate.

The Supreme Court while deciding this case referred to the leading case of Ryland Vs Fletcher 1861-1873 All ELR (Reprint) 1 (The Ryland case) (see Endnote-5) but did not accept the principle laid down therein. The Court established the rule of absolute liability and held that if any damage is caused due to hazardous or dangerous activity then the sufferer is liable to be compensated irrespective of the fact that reasonable care was taken in carrying out the activity. The liability is absolute; there are no exceptions as held in the Ryland case. This principle has been enacted as part of two Acts namely the Public Liability Insurance Act, 1991 and the National Green Tribunal Act 2010.

Thus, the Supreme Court has established the following principles in the aforesaid cases.

There should be Sustainable Development.

Precautionary Principles should be adopted.

Polluter Pays.

Public Trust Doctrine.

Save Forests, trees, biodiversity.

The Rule of Absolute Liability.

LEGISLATIVE RESPONSE

The legislature has also enacted many Acts. Apart from the Acts dealing with protection of trees, forests, wildlife, biodiversity, the following Acts have been enacted to preserve the environment and check pollution.

The Water (Prevention and Control of Pollution) Act, 1974 (the 1974 Act);

The Air (Prevention and Control of Pollution) Act, 1981 (the 1981 Act);

The Water (Prevention and Control of Pollution) Cess Act, 1977 (the 1977 Act);

The Wild Life Protection Act, 1972 (the 1972 Act);

The Environment (Protection) Act, 1986 (the 1986 Act);

The Public Liability Insurance Act, 1991 (the 1991 Act);

The National Green Tribunal Act 2010 (the 2010 Act) (see Endnote-6).

The aforesaid Acts are separate but in a way are connected with each other. They alongwith the rules framed under them form the statutory environment jurisprudence in our country.

The 1974, 1981 and 1977 Act

The 1974 and 1981 Act, as their name indicates, have been enacted to prevent and control water and air Pollution. The 1974 Act provides for establishment of Central and State Pollution Boards. In other Acts, there is reference to the Boards. They are the ones that are established under the 1974 Act.

The 1974 and 1981 Acts also provide laying down of permissible water and air pollutants. They provide punishment (section 41-48 of chapter VII of the 1974 Act and Sections 37-47 of chapter VI of the 1981 Act) for violation of the provisions of the Acts and permit the Boards (section 33 of the 1974 Act and Sec. 22-A of the 1981 Act) to obtain restraining order from the Magistrate in case the water and air is being polluted.

The 1977 Act merely provides cess for generating funds for the functioning of the Boards under the 1974 Act.

The 1986 Act

The 1986 Act is more comprehensive and provide for protection and improvement of Environment. Section 3 of 1986 Act empowers the Central Government to take such measures as are necessary for protecting and improving the environment as well as preventing, controlling and abating environment pollution. This includes power to restrict areas in which industries, or operations, or process cannot be carried out or to lay down the conditions under which they can be carried out.

The 1986 Act, in contradistinction to 1974 and 1981 Act, empowers the Central Government to issue directions including for closure or prohibition of any industry, or operations, or process. Under the 1974 or 1981 Act, the Board or the government has no power to issue restraint order but have to move to the Magistrate for the same. Sections 15 to 17 of the 1986 Act provide punishment for violating the provisions of the 1986 Act and Rules framed under it. The Central Government, in pursuance of the power conferred under the 1986 Act, has also framed the following rules for specific industries.

The Recycled Plastics Manufacture and Usage Rules, 1999. These rules are proposed to be superseded by the Plastics (Manufacture, Usage and Waste Management) Rules, 2009, where suggestions have been invited.

The 1991 Act

The growth of hazardous industries, processes and operations is accompanied by the growing risks from accidents. These accidents not only involve the workmen employed in such undertakings, but also innocent members of the public. The 1991 Act was enacted to provide for mandatory public liability insurance to the victims (other than workers) for installations and handling of hazardous substances. The liability under this Act is limited and is to be decided by the collector on the principle of absolute liability. However, availability of immediate relief does not prevent the victims from going to Courts for claiming larger compensations.

The 2010 Act has establishment a Tribunal for deciding the cases relating to environmental protection, conservation of forests, other natural resources (including enforcement of any legal right relating to environment), and giving relief and compensation for damages to persons and property. It has the following features:

The Tribunal has jurisdiction over all civil cases where substantial questions relating to environment including enforcement of any legal rights relating to the environment is involved.

It can also grant compensation or restitution of property damaged to the victims of pollution and the other environmental damages arising under the Acts mentioned earlier immediately after the heading 'LEGISLATIVE RESPONSE';

It also has appellate jurisdiction against the orders passed under the aforesaid Acts as well as the Biological Diversity Act 2002 and the Forest Conservation Act 1980;

It can also execute its orders as a decree of the civil court;

A person aggrieved by the order of the Tribunal can file an appeal before the Supreme Court.

There are many Acts for protection of forests, wildlife, and biodiversity. However, the important ones are as follows:

The Biological Diversity Act 2002 (the 2002 Act) (see Endnote-11);

The Forest Conservation Act 1980 (the 1980 Act) (see Endnote-12);

The Wildlife Protection Act 1972 (the 1972 Act) (see Endnote-13);

THE FORGOTTEN REMEDIES

There are many remedies that are available at the district level. They should be properly utilised: they ensure greater participation of local residents, who should in these matters be more concerned, and may be more effective. These have also been explained in a recent decision of the Supreme Court in Kachrulal Bhaigirath Agrawal Vs. State of Maharashtra (2005) 9 SCC 36 (paragraph 10).

Chapter X (B- Public Nuisance) Sections 133 (see Endnote-14) -143 and (C- Urgent cases of nuisance or apprehended danger) section 144 of the Criminal Procedure Code (Cr PC). Kindly See Ratlam Municipality Vs. Vardhichand AIR 1980 SC 1622. In this case, there were slums in Ratlam. There were neither public lavatories nor drain etc. This was creating nuisance. The SDM, Ratlam, under section 133 CrPC, held that it was the duty of the Ratlam Municipality to remove the nuisance and issued necessary directions. This was upset by the District and Sessions Judge but was upheld by the High Court as well as by the Supreme Court;

Suits concerning Public nuisances and other wrongful acts affecting the public under section 91 of the Civil Procedure Code (CPC);

Representative suits under Order 1 Rule 8 of the CPC.

TO BE A GOOD ENVIRONMENTALIST

Is this the answer to our energy crises

Irrespective of the law enacted by the legislature or the efforts made by the court, we cannot have a greener tomorrow, unless we also act in a manner conducive to it. We have to be a good environmentalist in our individual capacity: one has to practise what one preaches. Here are some tips to be a good environmentalist.

Look for products that come in simple refillable containers and refill them each time.

Store food in reusable airtight containers and not in cling wraps;

Use cycles - save petrol, pollute less;

Encourage car-pooling amongst offices colleges & neighbours;

Switch off electricity when not in use;

Lobby - protect trees and forests;

Use energy efficient electrical appliances – compact fluorescent lamps (CFLs) and light emitting diodes (LEDs) instead of ordinary incandescent bulbs. They cost more but last longer and use less power. LEDs can be used effectively with solar cells.

Due to our economic conditions, we already have a few recycling programs namely:

The pheriwalas, the Kabaries who purchase old newspapers, bottles, tin canisters, iron.

The women who come to collect old clothes in exchange of utensils.

The boys who pick up plastic bags from garbage place.

The pheriwalas, the Kabaries, and the women in fact pay in cash or kind for one's old and discarded stuff. The boys don't pay but earn something for themselves. These things are again used as it is or converted into a thing of some other use like: paper bags and dusters. In case this cannot be done then they are recycled into other useful thing like glass, iron, tin, paper, or plastic. These programmes should be strengthened and given encouragement.

POPULATION CONTROL

We cannot solve our environmental problems unless we control and reduce our population. We have to adopt and encourage following policies if we wish to contain it.

Increase level of Education;

Women Empowerment;

Improve Basic Health and Medical Services;

Provide Incentives for one child family and disincentives (see Endnote-15) for more than one child family.

Is there a golden rule for interpreting environment laws? Is there a common thread that runs through the fabric of environment jurisprudence? Is there any central theme? Of course there is and it is,

‘We have not inherited this planet from our parents
But have merely borrowed it from our children’

Our children are our most important investments. They are our future. We have to protect their tomorrow. The responsibility lies with us. If we remember the golden rule, and are guided by it in our actions then not only there will be a green pathway but a brighter one too.

Endnote-1: PIL has no only been instrumental in safeguarding environment but has also protected parks and gardens. The Alfred park in Allahabad was saved by one such petition See Arun Kumar vs Nagarpalika Allahabad 1987 UPLBEC 665 Where all constructions were ordered to be removed. However it was partly modified by the Supreme Court in Allahabad Ladies' Club Vs Jitendra Nath Singh 2007 (11) SCC 609.

Endnote-2: This was result of an international conference convened under the auspices of United Nations at Stockholm, Sweden from June 5-16, 1972 on the Human Environment (also known as the Stockholm Conference). It was the UN's first major conference on international environmental issues, and marked a turning point in the development of international environmental politics. It started on 5th of June and now this day is observed as World Environment Day (WED).

Endnote-3: It was commission's recommendation that led to the Earth Summit – the United Nations conference on Environment and Development (UNCED) in Rio de Janeiro in 1992.

Endnote-4: GH Brundtland is a medical doctor and was Prime Minister of Norway for 10 years. She stepped down as a Prime Minister to become Director General of World Health Organisation.

Endnote-5: n the Ryland case, the defendant had made water reservoir. However, beneath the site of the reservoir were the old shafts of unused coal workings. They communicated with other coal workings including the plaintiff's colliery which was adjoining to it. There was no default on the part of the defendants in selecting the site or construction of the reservoir but reasonable care was not used by the persons employed with reference to the shafts, which failed to bear the water pressure. The reservoir burst downwards. Consequently, the water in the reservoir found its way into plaintiff’s colliery. The House of Lords upheld the decision of court below granting damages against the defendant. The law laid down in this case and its subsequent departure has been summarised in Halsbury laws of England (Volume 45 4th Ed paragraphs 1305) as follows.

'A person who for his own purposes brings onto his land and collects and keeps there anything likely to do mischief if it escapes must keep it in at his peril and, if he fails to do so, is prima facie liable for the damage which is the natural consequence of its escape. Liability under the rule is strict, and it is no defence that the thing escaped without the defendant's wilful act, default or neglect, or even he had no knowledge of its existence. The rule applies only to non-natural user of the land. It does not apply

To things naturally on the land;

Where the escape is due to an act of God, the act of a stranger or the default of the plaintiff;

Where the thing which escapes is present by consent of the person injured;

In certain cases where there is statutory authority.’

Endnote-6: This Act has deleted the following Acts:

The National Environment Appellate Authority Act, 1997 (the 1997 Act);

The National Environment Tribunal Act, 1995 (the 1995 Act).

Endnote-7: These rules were framed in pursuance of the recommendations of the committee set up by the Supreme Court in Almitra H Patel vs Union 1998 SC 993 – See 2000 (2) SCC 679.

Endnote-8: Kindly see In re Noise Pollution 2005(5) SCC 733

Endnote-9: This Act was similar to the 1991 Act. Like the 1991 Act, it provided the compensation to the person (other than the workman) or damages to any property from accident due to handling of any hazardous substance. But unlike the 1991 Act, the compensation was not limited as is in the 1991 Act and compensation can be claimed not only for damage to any property but to environment as well. It also established a Tribunal and its benches for adjudicating the compensation and appeal lay to the Supreme Court.

Endnote-10: This Act was a kind of amendment to the 1986 Act. It had established a National Environment Appellate Authority to deal with petitions, complaints, representations or appeals against the grant of environmental clearance to projects under the 1986 Act. This was also so recommended in the Oleum gas leakage case (paragraph 22).

Endnote-11: This Act has been enacted to provide for conservation of biological diversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of the use of biological resources, knowledge and for matters connected therewith or incidental thereto.

Endnote-12: This Act has been enacted to provide conservation of the forests and for matters connected therewith or ancillary or incidental thereto.

Endnote-13: This Act has been enacted to provide protection to the wild animals, birds, and plants and for matters connected therewith or ancillary or incidental thereto with a view to ensuring the ecological and environmental security of the country.

Endnote-14: The continuance of section 133 CrPC was challenged on the ground that it is impliedly repealed by the 1974 Act. It was accepted by the MP High Court but the Suprme Court reversed the decision and rejected the challenge in State of MP Vs. Kedia Leather & Liquor Ltd. 2003 (3) SCC 389. The Court observed :

‘The area of operation in the Code and the pollution laws in question are different with wholly different aims and objects, and though they alleviate nuisance, that is not of identical nature. They operate in their respective fields and there is no impediment for their existence side by side.’

Endnote-15: Disincentives for more than two children have been upheld by the Supreme Court in Javed & others Vs. State of Haryana JT 2003(6) SC 283=2003(8) SCC 369.

Appendix-1

ENVIRONMENT-FRIENDLY PRODUCTS: ECOLABELS

How does one find out environment-friendly products? 'Ecolabelling' is the answer. It is a voluntary method of environmental performance certification and labelling of environment-friendly products. There are many different voluntary (and mandatory) environmental performance labels and declarations. The International Organization for Standardisation (ISO) has identified the common goal of these labels as,

'[T]hrough communication of verifiable and accurate information, that is not misleading, on environmental aspects of products and services, to encourage the demand for and supply of those products and services that cause less stress on the environment, thereby stimulating the potential for market-driven continuous environmental improvement.'

The aforesaid voluntary labels have been identified by the ISO in three broad categories.

Type I: A voluntary, multiple-criteria based, third party program that awards a license that authorises the use of environmental labels on products indicating overall environmental prefer-ability of a product within a particular product category based on life cycle considerations.

Type II: Informative environmental self-declaration claims.

Type III: Voluntary programs that provide quantified environmental data of a product, under pre-set categories of parameters set by a qualified third party and based on life cycle assessment, and verified by that or another qualified third party

The Ecomark Scheme - India

The first national ecolabelling program was Germany's Blue Angel Ecoseal, designed in 1978. Since then, approximately 28 national ecolabelling programs have been developed worldwide. The Government of India has also decided to institute a scheme of labelling of Environment Friendly Products 'Ecomark' in 1991 {Resolution No. GSR 85(E) dt. 20.2.1991 Ministry of Environment, Forest & wildlife} (the Ecomark scheme).16

Ecomark logo

An earthen pot has been chosen as the logo for the Ecomark scheme for the reason that it

Uses a renewable resource like earth,

Does not produce hazardous waste, and

Consumes little energy in making.

Ecomark signifies that the product, which carries it, does the least damage to the environment. Unfortunately there is lack of consumer awareness and it is not popular. The government ought to take steps to popularise it. Perhaps one of the first step could be to make Ecomark or similar ecolabel mandatory for government, semi government, and government sponsored purchases.

Clause 3 of the Ecomark scheme contemplates three stages for the award of ecomark.

A steering committee (set up in Ministry of Environment and Forest): To determine the product categories; and to formulate strategies for promotion, implementation, future development and improvement of the Ecomark scheme.

A technical committee {(set up in Central Pollution Board (established under the 1974 Act)}17 : To identify criteria, and interse priority between the criteria; and to identify the specific product for the ecomark scheme.

The Bureau of Indian standards: To assess, certify and draw up a contract with the product manufactures for use of ecomark label on payment of fee.

The Government of India has notified the final criteria for the following 16 product categories namely,